Resolution
against the Sedition Act, other laws and actions taken which stifle
speech and expression, and matters in connection therewith

Proposed by Christopher Leong, as Chairman of the Bar Council and on behalf of the Bar Council, dated 12 Sept 2014

WHEREAS:

(1) The
Sedition Act 1948, as with its predecessor the Sedition Ordinance, was
conceived and used as an instrument of oppression. It is an archaic and
repressive law, and is the antithesis of democracy, rule of law,
justice and human rights.

(2) The
Sedition Act 1948 has been used to stifle speech and expression, to
shut out contrary views and voices, to quell dissent and opposition, to
constrict and deny democratic space, and to oppress and suppress
Malaysians.

(3) The
Sedition Act 1948 has been justified on the premise that there are
matters that are too sensitive to address, speak about or debate; and
the Act is therefore required to ensure and maintain harmony, unity and
public order. Our 57 years of “Merdeka” has clearly shown this to be a
myth.

(4) The
Sedition Act 1948 has instead served to deter or prevent important
issues from being properly and genuinely addressed. Some of these issues
are effectively “swept under the carpet” and allowed to fester. The
Act serves to perpetuate and entrench the racial, religious and other
fault lines in our nation.

(5) The
fundamental freedoms of speech and expression, giving voice to thoughts
and ideas, as well as the right to information, are fundamental
attributes of a vibrant and thriving democracy, and which are essential
for the development, progress and growth of a nation. It is robust
debate, diversity of opinion and education that would ultimately
promote, inculcate and maintain true and enduring unity, goodwill and
mutual respect amongst Malaysians.

(6) The
Sedition Act 1948 is unacceptable and repugnant to the rule of law for
the further reasons that it creates offences arising from an act,
speech, words, publication or other thing that are defined as having
“seditious tendencies” which are imprecise and without clear boundaries.
Unlike other criminal offences, the offence of sedition does not
require mens rea or the element of intent; the correctness of what is
done, or the truth of what is said, printed or published is disregarded
and not a defence to the offence.

(7) It
is wholly unacceptable that a criminal offence with grave and dire
consequences is made akin to a strict liability offence.

(8) The
Prime Minister had on 11 July 2012 announced that the government will
repeal the Sedition Act and replace it with a National Harmony Act. He
stated the following in his speech delivered at the Majlis Makan Malam
Jabatan Peguam Negara Bersama YAB Perdana Menteri:

Pada
analisis akhirnya saya teringat kepada pendapat ahli falsafah tersohor
Britain, John Locke: “The end of law is, not to abolish or restrain, but
to preserve and enlarge freedom”. Second Treatise Of Civil Government
(1690) . . .

(9)The Deputy Prime Minister was reported in the media on 13 July 2012 as follows1:

The
repealing of the Sedition Act 1948 which will be implemented soon is
proof that the government is not just empty talk in bringing about
political transformation, said Deputy Prime Minister Tan Sri Muhyiddin
Yasin.

He
said the repealing of the Act was also proof that the government is
keeping its word on bringing national transformation which was not only
in the socio-economic sector, but political transformation like in the
abolishing of the Internal Security Act.

“We
don’t just talk or make announcements (on transformation), we act.
Some of the laws we introduced we have enforced, this (repealing of the
Sedition Act) is the latest step to show the government is in tune with
the people,” he told reporters after launching the Sungai Siputeh Mini
Rural Transformation (Mini RTC) here yesterday .

The
government was also concerned about development and changes in
Malaysian society which wanted a system that was more transparent, a
step that was in tandem with democratic practices and demands of human
rights, he said.

He
said the opposition also did not expect the government to take this
brave a step in bringing about transformation, especially in the
political aspects.

Muhyiddin
also said the perception that the soon-to-be abolished Sedition Act
1948 was being used against certain individuals was not true.

He
said he also hoped that the people could appreciate the sincerity of
the government in bringing about national transformation, which also
encompassed political changes.

(10)These
statements of the Prime Minister and Deputy Prime Minister, together
with the Prime Minister’s statements on his 1Malaysia blog dated 7
August 2012 and 4 April 2013, are tantamount to an express recognition
by the government that the Sedition Act 1948 is an obsolete and
antiquated law that is no longer suitable, relevant or consonant with
the times.

(11)However,
various events thereafter have given cause for grave concerns over the
commitment made by the government as to its pledge to repeal the
Sedition Act 1948:

(a) The recent statements by several Ministers and the Deputy Prime Minister2
that appear to contradict the said pledge made by the Prime Minister on
behalf of the government and undermines the Prime Minister’s reforms
for a more progressive, moderate and balanced Malaysia; and

(b) The
continued use of and the recent escalation in investigations, arrests
and prosecutions pursuant to the Sedition Act 1948.

(12)The
Sedition Act 1948 has continued to be used against many Malaysians
ranging from students and academics to civil society activists,
journalists and politicians. The individuals who have since 2013 faced
the brunt of this repugnant and draconian law are as listed in APPENDIX
A.

(13)The authorities have also resorted to the Sedition Act 1948 to investigate the persons listed in APPENDIX B.

(14)The
charges against Associate Professor Dr Azmi Sharom (a law lecturer) and
N. Surendran (a lawyer and Member of Parliament), and the investigation
against Susan Loone (a journalist with an online news portal), are
examples of unwarranted and blatant attacks on academic freedom, freedom
of speech and expression, and freedom of the press, respectively.

(15)The
continued resort to the Sedition Act 1948 by the authorities is a
volte-face and a direct contradiction of the explicit promise of the
Prime Minister to repeal the Act, and raises serious questions over the
government’s sincerity in pursuing transformation through legislative
reforms.

(16)The
Sedition Act 1948 is viewed as being abused by the authorities, for
instance, for apparent selective non-prosecution, such as listed in
APPENDIX C.

(17)The
Malaysian Bar does not advocate the use of the Sedition Act 1948, but
nevertheless abhors the apparent discrepancies in treatment and
selective prosecution by the authorities for purported offences under
the Act.

(18)Although
the Prime Minister had stated on 11 July 2012, and the Deputy Prime
Minister had been reported on 13 July 2012 to have stated, that it is a
misconception that the Sedition Act is used as a governmental tool
against dissenting views and/or against only certain individuals, it
would appear that other individuals are immune or insulated from
prosecution under the Act. This lends weight to the perception that the
Sedition Act 1948 is used as a political tool or weapon dressed up as
legislation.

(19)The
use or abuse of the Sedition Act 1948, or other laws, feeds the view
that there is an unhealthy symbiotic relationship between the police and
the government. Other instances lend further to this perception or
view, for instance, the use of another archaic law, namely, criminal
defamation on Dato’ Seri Hj Mohammad Nizar Jamaluddin, the mass arrest
by the police of members of the Pasukan Peronda Sukarela immediately
after they completed their participation in the Penang State National
Day parade, and the Inspector General of Police’s threat to investigate
and possibly charge people who allegedly disrespected him on Twitter.

(20)The
Sedition Act 1948 has no place in our nation, which aspires to be a
modern, moderate and progressive democratic society that seeks to
respect the rule of law and to engender lasting harmony and unity. The
continued existence of the Act gives rise to a reliance on its draconian
provisions as a knee-jerk reaction to expressions of purportedly
sensitive issues and dissenting views.

(21)In
clamping down on views, discourse and expression, and restricting
democratic space, the Sedition Act 1948 unfortunately has the effect of
pandering to and encouraging extremist elements, and foments disunity
and disharmony.

(22)The
Sedition Act 1948 has further served to impede the development of a
mature, considerate and accepting Malaysian psyche; and perpetuates
immaturity, lack of understanding, confusion and ignorance amongst
Malaysians, and exploits insecurities, anxieties and fears.

(23)The
Malaysian Bar does not advocate nor abide by rudeness, insults and
disrespect for ethnicity, religion and the Rulers. Such conduct is
unwarranted, offensive and abhorrent. Nevertheless, the Malaysian Bar
does not advocate the criminalisation of such behaviour to be justified.
True respect and goodwill cannot be attained by compulsion and penal
sanctions.

(24)In
concordance with this, the proposed National Harmony Act that is being
considered by the government should not seek to recast nor to duplicate
substantively the provisions of the Sedition Act 1948.

(25) The
proposed new legislation should not seek to criminalise thought, speech
and expression, and should instead provide a framework that recognises
and encourages interaction, discourse, debate and learning.

(26) In
the event there are to be any measure of criminal penalties, these must
be limited and the scope of the new offence must be narrowly defined
and confined, and the threshold for breach must be set much higher.
Only threats of or incitement to, and actual ethnic or religious
violence to persons or property, or hatred for the Rulers, should be
criminalised, and the element of intention must be present.

(27) The
Malaysian Bar takes note of Article 10(1)(a) of the Federal
Constitution providing for the freedom of speech and expression.
Inherent in this right is the right to the freedom of information. The
provisions in Article 10(2)(a) and (4) providing for the possibility of
legislation by Parliament to impose restrictions on the rights conferred
in Article 10(1)(a) are enabling in nature, and do not prevent the
repeal of the Sedition Act 1948 or require any replacement Act to
contain such restrictions.

(28) The
Malaysian Bar welcomes the statement by the Attorney General dated 9
September 2014 that his Chambers will take into consideration issues or
concerns that have been raised with regard to the decision to prosecute
cases, and that his Chambers will thus be reviewing the charges against
Associate Professor Dr Azmi Sharom and other cases being prosecuted
under the Sedition Act 1948.

THEREFORE, it is hereby resolved that:

(A) The
Malaysian Bar calls upon the Malaysian Government to commit to and
promote the building of a fair, just, harmonious, unified, moderate and
progressive Malaysia, and reject all forms of bigotry, racist and
religious extremism.

(B) Whilst
not advocating rudeness, insults and disrespectfulness, the Malaysian
Bar calls upon the Malaysian Government to uphold the primacy of the
right to and freedom of speech and expression, in particular:

(i)freedom of information;

(ii)academic freedom;

(iii)journalistic freedom; and

(iv)freedom to scrutinise, discuss, debate or criticise;

and to reject any criminalisation of the exercise of these fundamental rights.

(C) The
Malaysian Bar condemns the use and continued use of the Sedition Act
1948, in particular its selective use, and the excessive sentences meted
out by the Judiciary.

(D) The
Malaysian Bar calls upon the Malaysian Government to abide by its
pledge to repeal the Sedition Act 1948, and to forthwith repeal the
Sedition Act 1948.

(E) The
Malaysian Bar calls on the Attorney General to forthwith withdraw all
pending charges, cases and appeals, and to concede to all pending
appeals, under the Sedition Act 1948 in the courts of Malaysia; and
calls upon the Judiciary to prevent the systematic abuse of the Sedition
Act 1948, to uphold the rule of law and the rights of all to freedom of
speech and expression.

(F) The
Malaysian Bar calls upon the Malaysian Government to forthwith impose a
moratorium on the use of the Sedition Act 1948 pending its repeal, and
for the police to cease all investigations pursuant to the Sedition Act
1948.

(G) The
Malaysian Bar calls on the Malaysian Government to ensure that the
proposed National Harmony Act, or any replacement Act by whatever name
for the Sedition Act 1948, is not a recast of the Sedition Act 1948.

(H) The
Malaysian Bar mandates the Bar Council to immediately organise a
peaceful protest in the form of a walk and to take any and all such
further action as it deems appropriate or necessary in order to advance
and promote the matters herein and to uphold the principles of the
Malaysian Bar.

(a) PAS
Subang Youth Council deputy head, Wan Ji Wan Hussin was charged under
Section 4(1)(c) of the Sedition Act 1948 on 10 September 2014 for his
remarks on Facebook on 5 November 2012 that were allegedly insulting of
the Ruler.

(b) Ali
Abdul Jalil, a social activist was charged for three offences on 8
September 2014 under Section 4(1)(c) of Sedition Act 1948 for his
remarks that were allegedly insulting of the Ruler.

(c) Activist
Muhammad Safwan Anang was found guilty under Section 4(1)(b) of the
Sedition Act 1948 on 5 September 2014 for uttering seditious words aimed
at urging the public to change the government in a speech at a May 13
forum last year.

(d) Member
of State Reform Party David Orok was charged under Section 4(1)(c) of
the Sedition Act 1948 on 3 September 2014 for posting on Facebook
remarks allegedly insulting Prophet Muhammad and Islam.

(e) UM
law lecturer Azmi Sharom was charged under Section 4(1)(b) and Section
4(1)(c) of the Sedition Act 1948 on 2 September 2014 for expressing his
views regarding the appointment of a Selangor Menteri Besar with
reference to the “Perak Constitutional crisis”.

(f) Seri
Delima assemblyperson R.S.N. Rayer was charged under Section 4(1)(b) of
the Sedition Act 1948 on 27 August 2014 for his “celaka celaka Umno”
remark on 20 May 2014 during the Penang State Assembly sitting.

(g) Shah
Alam Member of Parliament Khalid Abdul Samad was charged under Section
4(1)(b) of the Sedition Act 1948 on 26 August 2014 for his remarks
regarding the executive powers of the Selangor Islamic Religious
Council.

(h) N.
Surendran was charged under Section 4(1)(c) of Sedition Act 1948 on 19
August 2014 for alleging that Datuk Seri Anwar Ibrahim’s Sodomy II
charge was a political conspiracy involving Prime Minister Datuk Seri
Najib Razak and subsequently, he was charged under the same Section on
27 August 2014 for releasing an allegedly seditious press statement
titled “Court of Appeal’s Fitnah 2 written judgement is flawed,
defensive and insupportable”.

(i) ISMA
President Abdullah Zaik Abd Rahman was charged under Section 4(1)(b) of
Sedition Act 1948, and the alternative charge under Section 4(1)(c) of
the same Act, on 19 June 2014 for publishing allegedly seditious
statements in an article titled “The arrival of the Chinese with the
British colonialists was a form of intrusion” on the ISMA website.

(j) J.
Gopinath was charged under Section 4(1)(c) of the Sedition Act 1948 on
19 June 2014 for an Facebook posting allegedly insulting of Islam and
Prophet Muhammad.

(k) Hidayat
Mohamed was charged under Section 4(1)(c) of the Sedition Act 1948 on
19 June 2014 for his comments on Facebook allegedly insulting of the
Thaipusam procession at Batu Caves.

(l) Chow
Mun Fai was charged under Section 4(1)(c) of the Sedition Act 1948 on
12 June 2014 for making remarks allegedly disparaging of Islam and
Prophet Muhammad. He pleaded guilty to the alternate charge under
Section 233(1)(a) of the Communications and Multimedia Act 1998.

(m) Seputeh
Member of Parliament, Teresa Kok, was charged under Section 4(1)(b) of
the Sedition Act 1948 on 6 May 2014 for publishing an allegedly
seditious Chinese New Year video on YouTube.

(n) The
late Karpal Singh was found guilty of uttering seditious words against
the Ruler and convicted on 21 February 2014 and fined RM4,000 by the
Kuala Lumpur High Court.

(o) Vivian
Lee and Alvin Tan were charged under Section 4(1)(c) of the Sedition
Act 1948 on 19 July 2013 for posting on their Facebook page allegedly
seditious material.

(p) Hindraf’s
P. Uthayakumar was charged under section 4(1)(a) of the Sedition Act
1948 for writing an allegedly seditious letter in 2007 to the
then-British Prime Minister, Gordon Brown. He was convicted and
sentenced to two years and six months imprisonment on 5 June 2013.

(q) Student
activist Adam Adli was charged under Section 4(1)(b) of the Sedition
Act 1948 on 23 May 2013 for allegedly attempting to topple the
government through street protests.

(r) Parti
Keadilan Rakyat Vice President Tian Chua, activist Haris Ibrahim,
student Muhammad Safwan Anang, Hishamuddin Rais and PAS’s Tamrin Ghafar
were charged under Section 4(1)(b) of the Sedition Act 1948 on 29 May
2013 for allegedly uttering seditious words at a public forum. Muhammad
Safwan Anang was found guilty of sedition on 5 September 2014 and
sentenced to 10 months’ imprisonment.

(s) Parti
Keadilan Rakyat Vice President, Tian Chua, was charged under Section
4(1)(b) of the Sedition Act 1948 on 14 March 2013 for allegedly saying
that the Lahad Datu incident was an UMNO conspiracy to frighten the
people.

(t) Sugumaran Periasamy was charged on 22 August 2014 for a Twitter posting made in 2011.

APPENDIX B

(a) Malaysiakini
journalist, Susan Loone was investigated on 4 September 2014 over her
article on an interview with Penang state exco Phee Boon Poh and the
mass arrests of the Pasukan Peronda Sukarela (“PPS”) on Merdeka day.

(b) Viktor
Wong and Nasrul Omar were both investigated on 1 September 2014 under
the Sedition Act 1948 and the Section 233 of the Communications and
Multimedia Act 1998 for allegedly posting insulting remarks against the
Royal Malaysian Police.

(c) Pandan MP Rafizi Ramli was investigated for:

(i) alleged
sedition for disclosing a letter from a minister addressed to Bank
Rakyat, in which the latter had demanded preferential treatment from the
bank for carpet trader Deepak Jaikishan;

(ii) alleged
sedition in March 2014 over remarks he made against right-wing groups.
The groups had threatened to protest outside churches against the
Christians’ use of the word "Allah" to refer to God; and

(iii) alleged sedition in May 2014 over a book he authored entitled “Reformasi 2.0: Fakta kes Anwar Ibrahim”.

(d) “Smallfield
Benjamin” was investigated on 2 August 2014 for a post on FaceBook
which is alleged to be insulting to Malays and Islam.

(e) Kelvin
Yip was investigated on 2 August 2014 for allegedly complaining in a
disrespectful manner about the “Azan” call to prayer.

(f) Muslim
preacher Ustaz Shahul Hamid Seeni Mohd was investigated on 31 July 2014
for a video clip on YouTube where Shahul is said to have insulted
Indians and the Hindu religion.

(g) Sim Kwang Yung was investigated on 20 July 2014 for allegedly uttering seditious words in his Facebook account.

(h) Phang
Ah Ngang was investigated on 10 January 2014 for apparently asking a
Muslim convert to remove her hijab if she wants to continue teaching at
Sekolah Jenis Kebangsaan Cina (SJKC) Nan Ya in Teluk Sengat, Johor.

(i) Mohd
Razlan Muhammad Rafii was investigated on 22 May 2014 when he allegedly
threatened to burn down the DAP headquarters over the “UMNO celaka”
remark made by DAP’s Seri Delima assemblyperson R.S.N. Rayer.

(j) National
laureate Datuk Abdul A. Samad Said was investigated on 4 September 2013
for allegedly flying the Sang Saka Malaya flag.

(k) Melissa Gooi was investigated on 5 June 2013 for allegedly insulting the Yang di-Pertuan Agong.

(l) Ibrahim
Ali was investigated on 23 January 2013 for allegedly calling Muslims
to burn Malay-language bibles that contain the word “Allah” and other
religious Arabic script.

(m) Ahmad Abdul Jalil was investigated on 2 November 2012 for a post in Facebook that allegedly insulted the Sultan of Johor.

(n) Ong
Sing Yee was investigated on 6 September 2012 for allegedly stepping on
a photo of Prime Minister Najib Tun Razak at Dataran Merdeka during the
Merdeka eve celebration.

APPENDIX C

(a) Ibrahim Ali for allegedly inciting the burning of the Malay language bibles on 19 January 2013.

(b) Ridhuan
Tee Abdullah and Zulkifli Noordin for allegedly disparaging the Hindu
religion and insulting adherents of the religion on 18 February 2013 and
6 March 2013 respectively.

(c) The
racial rhetoric of the Prime Minister in his allegation of a “Chinese
tsunami” on 6 May 2013, followed by the Utusan Malaysia article entitled
“Apa lagi orang Cina mahu?” on 7 May 2013.

(d) Datuk
Mohd Noor Abdullah, a former Court of Appeal judge, for allegedly
accusing a racial group of treason and warning of retribution by another
racial group on 22 May 2013.

(e) The
bloodletting of chickens in the streets of Kuala Lumpur allegedly by
some members of Pertubuhan Permuafakatan Majlis Ayahanda Malaysia
(Permas) and overt references to the racial riots known as “May 13” as
an implied threat.

(f) UMNO
Penang public assemblies on 18 January 2014 at Seberang Jaya and 19
January at Bukit Mertajam where it is alleged some persons made menacing
references to “May 13” with its implied threat of violence.

(g) The persons involved in the burning of an effigy of a Christian priest in January 2014.

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